Rural Economy and Connectivity Committee

Meeting date: Wednesday, November 23, 2016

Official Report 659KB pdf

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Subordinate Legislation

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Crofting Commission (Elections) (Scotland) Amendment Regulations 2016 [Draft]

Good morning. I welcome everyone to the 11th meeting in 2016 of the Rural Economy and Connectivity Committee and remind them to switch off their mobile phones. Apologies have been received from Jamie Greene and Mike Rumbles, though Mr Rumbles will turn up later—sooner rather than later, I hope.

Our first three agenda items this morning relate to crofting. The first two relate to an affirmative Scottish statutory instrument on Crofting Commission elections, after which we will take evidence on our review of crofting law priorities. The regulations are laid under the affirmative procedure, which means that Parliament must approve them before the provisions can come into force. Following this evidence session, the committee will be invited to consider a motion to approve the regulations.

I welcome Fergus Ewing, the Cabinet Secretary for Rural Economy and Connectivity; Gordon Jackson, head of agricultural development and crofting at the Scottish Government; and Judith Brown, who is the solicitor acting on behalf of the Scottish Government. I invite the cabinet secretary to make an opening statement on the regulations.

Thank you, convener, and good morning to everyone. I am pleased to be here this morning to support the committee’s consideration of the draft Crofting Commission (Elections) (Scotland) Amendment Regulations 2016. The regulations are made by the Scottish ministers in accordance with powers conferred by paragraph 7(1) of schedule 1 to the Crofters (Scotland) Act 1993. I will provide a brief overview and outline the reasons why the amendment regulations have been prepared. Thereafter, my officials, Gordon Jackson and Judith Brown, and I will answer questions.

The regulations amend the Crofting Commission (Elections) (Scotland) Regulations 2011—the principal regulations—which set out the arrangements under which elections to the Crofting Commission are conducted. Of course, a member of this committee, Stewart Stevenson, as the then Minister for Environment and Climate Change, was responsible for the 2011 Regulations—not that I mention that to pass the buck in any way.

The amendments to the principal 2011 regulations relate to candidate eligibility; absent and proxy votes; the filling of vacancies; the retention of documents; election expenses; and consequential amendments to and revocations of provisions of the principal regulations. I will cover each of the headings in turn—there is quite a lot to cover, but I will try to be as brief as possible.

On candidate eligibility, the 2011 regulations set out the grounds on which a person is disqualified from being a candidate at an election. That includes disqualification where a person is found by the commission to be in breach of the residency duty—which is to live within 32km of the croft—without having obtained consent from the Crofting Commission.

The amending regulations add further grounds of disqualification from being a candidate. That applies to persons the commission has decided are failing to comply with the duties under the act to not misuse or neglect their croft, and to cultivate and maintain their croft. The amending regulations place all three duties—residency, misuse and cultivation—on an equal footing in terms of candidate eligibility to stand for election.

The 2011 regulations allow voters to have their ballot paper sent to an address other than their registered address—the absent voters list. They also allow voters to have their ballot paper sent to a proxy—the proxy list. The regulations place a deadline on when a voter can make such arrangements. However, voters can also apply to be removed from the absent voters and proxy lists, and the principal regulations place no deadline on that. The amending regulations introduce a deadline, which is to avoid scope for errors in the issuing of ballot papers. That new deadline provides the registration officer with a week in which to amend the crofting electoral register, which must be supplied to the returning officer not later than four weeks before the day of the count. The deadline is reflected in an amendment to the election timetable.

As it stands, the only way to select a replacement commissioner, should an elected commissioner vacate their post part way through their elected term, is for Scottish ministers to appoint a replacement. The amending regulations allow for the filling of vacancies that arise among elected members by candidates who polled the next greatest numbers of votes behind the elected member. That process will be repeated until a person accepts the invitation or until the list of candidates is exhausted. If the list of candidates is exhausted, the Scottish ministers will then be able to make an appointment.

The amending regulations also allow the Scottish ministers to leave a vacancy unfilled, in the case of a vacancy arising less than a year before the next election, provided the Crofting Commission remains quorate.

The amending regulations allow for the retention of certain documents for a period of five years. That is a consequential requirement of the new provision regarding filling vacancies which, in order to operate, requires certain information about the last election to remain available.

The amending regulations increase the 2011 limit on election expenses from £600 to £700 and require all candidates to make a declaration of all payments that are made and to present all relevant bills and receipts.

The amending regulations include a number of minor amendments that are consequential to the other changes that are being introduced. They also revoke two provisions that were included in error in the principal regulations. Regulation 11(2) of the principal regulations is revoked to make it clear that non-business days should not be discounted from the election timetable when referring to periods of weeks, which will make the election timetable clearer to the reader. Regulation 49 of the principal regulations is also revoked as it referred to information that was relevant to the single transferable vote system, whereas the Crofting Commission elections operate under the alternative vote system.

I confirm that a public consultation on proposed changes to election arrangements took place from 18 March to 22 June 2016. The consultation paper, the responses and the analysis report have been published on the Scottish Government website. I also confirm that an equality impact assessment has been completed and that no equality impact issues were identified. In terms of financial impact, no business and regulatory impact assessment has been prepared for the regulations, as no impact on business, public bodies or the third sector is foreseen.

I apologise for the length of my opening statement; I sought to cover a number of disparate aspects of the proposed regulations. I thank you for listening, I commend the amendment regulations to you and I am pleased to try to answer any questions that you might have.

I have a technical question to which it might be useful for future reference to have the answer on the record.

The filling of vacancies among elected members is in regulation 10 of the amendment regulations, which refers to regulation 54A in the original regulations. Paragraph 4 states that the person who would replace a vacating member

“would be qualified to be a candidate at an election under regulation 9”.

I assume—the regulations seem to be silent on this—that the qualification relates to the date on which the vacancy occurs, rather than to the date on which the person qualified originally. Presumably, they would have been qualified on the original date of election, as otherwise they could not have stood. In other words, they have to remain qualified through to that point. For clarity, it would perhaps be helpful to confirm that.

Yes, that is correct. At the time of being given the invitation, they must remain qualified.

That is the relevant day plus.

That is correct.

I am a bit concerned about replacing someone who was elected with the person who got the next highest number of votes. We are all aware that, quite often, a couple of people stand and one wins by a country mile, while the other gets almost no support. I would be concerned if the person who had little or no support were elected at that point, especially as the cabinet secretary said that the registration officer will go down through the list and eventually get to the person who polled the least number of votes. If the person with no support is elected, that is not very democratic.

One could draw comparison with the elections to this Parliament—in the event of by-elections—and list MSPs. However, that is perhaps a mischievous reflection so, instead of giving that as an answer, I will pass to Judith Brown.

I agree that that is mischievous.

That is not the same. The candidates in this case are not on a list.

It would perhaps assist to look at the schedule to the Crofters (Scotland) Act 1993. Paragraph 6 of schedule 1, as introduced by the Crofting Reform (Scotland) Act 2010, sets out the arrangements for when an elected member ceases to hold office. It makes provision for Scottish ministers to appoint a member in the situation that the member who has left is not replaced by a person such as those mentioned in sub-paragraph 4. That sub-paragraph goes on to say that the person who would normally fill the vacancy would be the person who

“was a candidate in the election by virtue of which the elected member ... held office ... polled, in that election, fewer votes than the elected member ... and ... by virtue of regulations made under paragraph 7, may hold office as a member of the Commission.”

Therefore Parliament’s intention when those provisions were passed was that vacancies among elected members should be filled by people who had stood for election and polled fewer votes, rather than through a by-election, for instance. The provisions are to give effect to that intention of Parliament.

09:15  

I am concerned about that but, as you say, that is in the legislation. That just adds to the long list of things that are maybe wrong with the legislation.

To be serious, Rhoda Grant makes a very reasonable point, and I think that we all recognise it. However, Judith Brown has very helpfully and clearly made the point that the 1993 act, as amended, indicates that the intended process for filling vacancies was not through by-elections but through the process that is now included in the regulations. If that is correct—I have no reason to doubt the advice of our legal adviser—it is really up to the Parliament to implement the will as expressed in the law as passed by previous Parliaments. To be serious, if in due course we discuss reform of the law, as Rhoda Grant has just indicated—I do not doubt at all that she has raised a very fair point—that would be a legitimate area for debate.

I have two questions. First, will any of the changes to the election criteria for the commissioners mean that any of the current commissioners will be disbarred from standing again?

I am not aware of that. In any event, that is not something on which I would be likely to opine unless I were in possession of very clear evidence, as that would be quite a significant comment to make. I do not know whether my officials have anything to add to that.

I have no awareness of that.

A question occurred to me earlier that I have not had the opportunity to reflect on in detail. I said in my opening statement that the amending regulations add grounds of disqualification from being a candidate—namely, not misusing or neglecting their croft and not cultivating or maintaining it. Where the commission has decided that such persons are failing to fulfil those duties, they would be disqualified. Are the officials aware of whether the commission has decided that any persons have fallen into those categories?

I am not aware of any current on-going cases in which the commission has made a decision that a breach has occurred.

My second question is a general one. The cabinet secretary will understand that the committee has been looking at crofting issues; indeed, we will continue to look at them during this meeting. If, as a result of that and the information gathering that the cabinet secretary is undertaking separate from the committee, there was a decision to change crofting law completely, would those elections hinder his ability to do so? I would like some assurance that that will not be the case if that was the decision of the Parliament.

I can offer that assurance. Plainly, it is the duty of Parliament to consider any question of law reform. We do so on the basis that we have a Crofting Commission that performs regulatory functions that require to be carried out under the existing system. Clearly, the commission needs to continue to function and operate, and it is correct that we make proper provision for it to do so.

The elections will take place in March next year for five-year elected appointments. That takes us through to 2022. We will go on to discuss at a high level at an early stage issues that relate to crofting reform, but it is fair to say that that process quite properly should not be rushed and that it will take quite a long time.

We need a functioning Crofting Commission and I give the assurance that the decisions that we make today will in no way impede or impair the rights and responsibilities of the Parliament and its members.

As there are no other questions from the committee, I thank the cabinet secretary and his officials for their evidence to the committee.

Item 2 is formal consideration of motion S5M-02263, calling for the committee to recommend approval of the draft Crofting Commission (Elections) (Scotland) Amendment Regulations 2016. I invite the cabinet secretary to speak to and move motion S5M-02263.

I commend the regulations to the committee.

Motion moved,

That the Rural Economy and Connectivity Committee recommends that the Crofting Commission (Elections) (Scotland) Amendment Regulations 2016 [draft] be approved.—[Fergus Ewing]

Motion agreed to.

That concludes the consideration of this affirmative instrument. We will report the outcome of our consideration to the Parliament.

I briefly suspend the meeting to allow the witness panel to be reconfigured.

09:21 Meeting suspended.  

09:22 On resuming—